Westberg v. Barcroft

• Docket Number: 2-21-0543
• Decision Date: 31 August 2022
• Citation: 2022 IL App (2d) 210543,215 N.E.3d 985,465 Ill.Dec. 780
• Parties: Darlene WESTBERG, as Assignee of Barbara Bergstrom, Plaintiff-Appellant, v. Victor N. BARCROFT; Susan Barcroft; DRM Properties, LLC ; Sara Sinclair; Zane Anderson; Kelly Burlingame; Unknown Owners and Tenants; and Nonrecord Claimants, Defendants (Susan Barcroft, Defendant-Appellee).
• Court: Appellate Court of Illinois

2022 IL App (2d) 210543

215 N.E.3d 985

465 Ill.Dec. 780

Darlene WESTBERG, as Assignee of Barbara Bergstrom, Plaintiff-Appellant,

v.Victor N. BARCROFT; Susan Barcroft; DRM Properties, LLC ; Sara Sinclair; Zane Anderson; Kelly Burlingame; Unknown Owners and Tenants; and Nonrecord Claimants, Defendants

(Susan Barcroft, Defendant-Appellee).

No. 2-21-0543

Appellate Court of Illinois, Second District.

Filed August 31, 2022

Ariel Weissberg and Rakesh Khanna, of Wiessberg and Associates, Ltd., of Chicago, for appellant.

James A. Karamanis and Kenneth A. Nazarian, of Barney & Karamanis, LLP, of Chicago, for appellee.

PRESIDING JUSTICE BRENNAN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Darlene Westberg (as assignee of Barbara Bergstrom), sued, inter alios , defendants, Victor N. Barcroft and Victor's daughter, Susan Barcroft, for foreclosure of a judgment lien against real property Victor and Susan owned in joint tenancy. During the pendency of the lawsuit, Victor passed away. The underlying judgment—the subject of the lien—was solely against Victor. The parties filed cross-motions for summary judgment on the issue of whether Victor's interest in the property extinguished upon his death. The trial court held that it did and that Darlene could no longer foreclose on the judgment lien against the property. Accordingly, the trial court granted summary judgment in favor of Susan and against Darlene. For the reasons set forth below, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The following is derived from the pleadings and exhibits on file.

¶ 4 A. Judgment Lien

¶ 5 The location of the real property at issue is 312 East Main Street, Barrington (Barrington property). On July 5, 2000, Victor conveyed the Barrington property by quitclaim deed to himself and Susan as joint tenants. The quitclaim deed was recorded with the Lake County Recorder. A title insurance commitment for the Barrington property (with a July 18, 2019, commitment date) stated that title is vested in Victor and Susan as joint tenants.

¶ 6 Approximately 16 years after the execution of the quitclaim deed, on June 14, 2016, Barbara obtained a judgment of $388,394.92 against Victor in Florida state court on a breach-of-contract claim. Barbara assigned her interest in the judgment to Darlene.

¶ 7 Three years later, on March 15, 2019, Darlene filed with the Lake County Recorder a memorandum of judgment lien against the Barrington property. There is no dispute that the memorandum of judgment and its filing created a valid judgment lien against the Barrington property. See 735 ILCS 5/12-101 (West 2018). The following month, on April 22, 2019, Darlene initiated this action by filing a single-count complaint for foreclosure of the judgment lien against Victor, Susan, DRM Properties, LLC, unknown owners and tenants, and nonrecord claimants. The complaint was amended on September 30, 2020, to add as defendants Sara Sinclair—alleged to be a "friend" of Susan who "placed a mortgage on the Property after the Complaint was filed in this matter"—and Zane Anderson and Kelly Burlingame—tenants at the Barrington property.¹ Darlene sought a judgment of foreclosure and sale, a personal deficiency judgment against Victor, possession of the Barrington property, and termination of any possession rights.

¶ 8 Approximately a month later, on November 2, 2020, Victor passed away. On June 18, 2021, the trial court dismissed Victor from the lawsuit with prejudice.

¶ 9 B. Cross-Motions for Summary Judgment

¶ 10 On June 11, 2021, the parties filed cross-motions for summary judgment. Susan moved for summary judgment on the basis that Victor's death precluded foreclosure of the judgment lien. Susan argued that neither she nor Victor ever conveyed their interest in the Barrington property to another individual or entity. Thus, she owned a 100% undivided joint tenancy interest in the Barrington property. Accordingly, as the surviving joint tenant of the Barrington property, she became the sole owner of the property upon Victor's death. Since the Florida judgment was solely against Victor, Susan argued that there was no basis upon which to foreclose on the judgment lien against the Barrington property.

¶ 11 Darlene moved for summary judgment on the basis that the validity of the Florida judgment was undisputed and Susan failed to assert any affirmative defense to excuse Victor's failure to satisfy the judgment. Darlene stated that she was no longer seeking a deficiency judgment and sought only to foreclose on Victor's 50% interest in the Barrington property. Darlene argued that Victor's death did not preclude this relief. Rather, according to Darlene, section 12-157 of the Code of Civil Procedure (Code) ( 735 ILCS 5/12-157 (West 2018) ), titled "Death of judgment debtor," allows for foreclosure of the judgment lien. The statute provides that a money judgment may be enforced against the real estate of a deceased judgment debtor, or a sale may be made under such judgment, without reviving the judgment against the debtor's heirs, legatees, or legal representatives. Id.

¶ 12 Darlene also argued that section 15-1501(h) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (id. § 15-1501(h)), titled "Special Representatives," provides an additional basis for foreclosure of the judgment lien. Specifically, subsection 15-1501(h)(1) (applicable through section 12-101 of the Code (id. § 12-101 )—providing that a judgment lien on the judgment debtor's real estate may be foreclosed in the same manner as a mortgage), states that, with respect to property that is the subject of the foreclosure action, the court is not required to appoint a special representative for a deceased mortgagor for the purpose of defending the action if there is a living person that holds a 100% interest in the property by virtue of being the deceased mortgagor's surviving joint tenant or surviving tenant by the entirety, although a deficiency judgment against the deceased mortgagor is prohibited. Id. § 15-1501(h)(1).

¶ 13 C. Trial Court's Ruling

¶ 14 Following briefing and argument, on August 20, 2021, the trial court entered an order, granting Susan's motion for summary judgment and denying Darlene's motion for summary judgment for the reasons stated on the record. In its oral findings, the trial court noted that it had "reviewed the statutes cited and the pertinent case law and [found] that the property automatically did pass to Susan Barcroft upon the death of Victor Barcroft, Susan being a joint tenant with Victor." The trial court reasoned that "[t]he surviving joint tenant succeeds to the share of the deceased joint tenant by virtue of a conveyance, which created the joint tenancy[,] not as a successor of the deceased." Citing the supreme court's decision in Harms v. Sprague , 105 Ill. 2d 215, 224-25, 85 Ill.Dec. 331, 473 N.E.2d 930 (1984), the trial court held that Victor's property rights in the joint tenancy extinguished when he died. Thus, Victor "no longer had a property interest upon which the lien could attach."

¶ 15 The trial court found section 12-157 of the Code inapplicable because the Barrington property "transferred by way of the conveyance and not by some other means such as through [Victor's] estate." Section 12-157 references notice to the "heirs, legatees or legal representatives." 735 ILCS 5/12-157 (West 2018). While Susan happens to also be Victor's heir, "she could very well have been not related to her [sic ] in which case, according to [Darlene's] contention, you'd be able to foreclose without any, I guess, notice to her outside of the litigation itself."

¶ 16 The trial court also rejected the applicability of section 15-1501(h)(1) of the Foreclosure Law. Citing the appellate court's decision in Deutsche Bank National Trust Co. v. Estate of Schoenberg , 2018 IL App (1st) 160871, ¶ 21, 423 Ill.Dec. 275, 105 N.E.3d 80, the trial court reasoned that section 15-1501(h) of the Foreclosure Law "does not modify the mortgagee's rights with respect to the foreclosure action. It does not create, define or regulate any rights of the parties to the action." Rather, section 15-1501(h) merely addresses "the procedural aspect of who is a necessary party." The trial court distinguished JP Morgan Mortgage Acquisition Corp. v. Bell , 2020 IL App (3d) 190128, ¶¶ 37-38, 443 Ill.Dec. 700, 162 N.E.3d 334, in which the appellate court rejected the surviving tenant by the entirety's argument that the deceased tenant by the entirety was a necessary party to the mortgage foreclosure action and held that the action could proceed solely against the surviving tenant by the entirety. The trial court reasoned that, in Bell , "both tenants by the entirety executed the mortgage even though the [deceased tenant by the entirety] was the only one who signed the note." Therefore, the deceased tenant by the entirety was not a necessary party under section 15-1501(h). The trial court stated that the Bell decision did not "hold beyond that as [Darlene] argues."

¶ 17 Accordingly, the trial court entered judgment in favor of Susan and against Darlene. In its written order, the trial court further provided that "[a]ll defaults, technical or otherwise, entered against Defendants DRM Properties, LLC, Sara Sinclair, all tenants, unknown owners, and nonrecord claimants are hereby vacated, and all claims against them are dismissed as moot" and that "[t]his Order disposes of all claims and all Parties, thereby closing the matter."

¶ 18 Darlene timely appealed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, Darlene argues that the trial court misconstrued both section 12-157 of the Code and section 15-1501(h)(1) of the Foreclosure Law. Susan responds that the trial court did not misinterpret the statutes; rather, the statutes are not applicable in the first instance. We agree with Susan and hold that the trial court properly granted summary judgment in her favor.

¶ 21 Summary judgment is proper when "the pleadings, depositions, and admissions on file, together with the...